Kerala High Court
Dr. M.M. Hassan vs T.C. Mohammed on 25 January, 1994
Equivalent citations: AIR1994KER278, AIR 1994 KERALA 278, (1994) 1 KER LT 502, (1994) 1 KER LJ 479, (1995) 1 RENCJ 573, (1995) ILR(KER) 1 KER 233
JUDGMENT K. Narayana Kurup, J.
1. Can it be said that a doctor who is running nursing home is carrying on "business" within the meaning of the expression "trade or business" occurring in the Second Proviso to Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, is the quetion that arises for consideration in this Civil Revision Petition.
2. This is the 16th year and the 13th round of a chequered rent control litigation in which a doctor figures as tenant claiming protection under the Second Proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965) (for short 'the Act') which provides that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livilhood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.
3. The parties, namely, petitioner and respondent in this Civil Revision Petition are hereinafter referred to as the tenant and landlord respectively.
4. The revision is directed against the order of the Rent Control Appellate Authority in R.C. A. No. 164 of 1992 dated 5-6-1993 confirming the direction of the Rent Control Court in R.C.P. 127 of 1978 to the tenant to put the landlord in possession of the petition schedule building and holding that the tenant is not entitled to the protection provided under the Second Proviso to Section 11(3) of the Act.
5. The findings of the Rent Control Court that the tenant committed default in payment of rent and the landlord bona fide needs the building for his own occupation to provide residence and business accommodation to his elder son which was confirmed by the Appellate Authority were not set aside either by the District Court (Revisional Authority) or by the High Court. These findings having become final and conclusive, the Appellate Authority in R.C. A. 164 of 1992 out of which the present revision arises did not go into the correctness of the findings over again and no arguments were advanced before us also by the learned counsel for the tenant regarding the correctness of these findings. Therefore, the only question that remains to be considered is the entitlement of the tenant to the benefit evnisged under the second Proviso to Section 11(3) of the Act.
6. The facts of the case are as follows: The landlord filed R.C.P. No. 127 of 1978 for eviction of the tenant from the petition schedule building under Section 11(2)(b) (arrears of rent) and 11(3) (bona fide need) of the Act. The building along with the furniture kept therein were leased out to the tenant by the landlord on 1-3-1974 for a monthly rent of Rs. 600/-. The tenant was using one of the buildings for his residential purpose and running a nursing home by name "Alpha Nursing Home" in the other building. The landlord filed the above R.C.P. alleging that the tenant committed default in payment of rent from Sept. 1975 onwards and he bona fide needs both the buildings for providing a separate residence and a business accommodation for his elder son.
7. The tenant resisted the application for eviction contending that there is no arrears of rent and that the plea of bona fide need that the building in question is required for business accommodation for his son is false. The tenant also had a specific case is that he is depending solely on the income derived from the hospital business conducted in the petition schedule building and that there is no other suitable building available in the locality for conducting the hospital business.
8. The trial court by its order dated 28-2-1979 in R.C.P. No. 127 of 1978 allowed the Rent Control Petition Under Section 11(2)(b) and 11(3) of the Act and ordered eviction. The tenant filed R.C.A. No. 69 of 1979 before the Appellate Authority. The Appellate Authority by its order dated 28-9-1979 set aside the order of eviction passed by the Rent Control Court and remanded the case to the said court for fresh trial and disposal. The landlord thereupon filed a revision before the District Court as R.C.R.P. No. 107 of 1979. The District Court as per order dated 6-3-1980 allowed the revision setting aside the order passed by the Appellate Authority and directing the said authority to re-consider the matter afresh. The Appellate Authority thereupon heard the matter again and by order dated 19-7-1980 in R.C.A. No. 16 of 1979 dismissed the appeal. That order was challenged by the tenant before the District Court in R.C.R.P. No. 129 of 1980 and the revisional court by its order dated 26-11-1981 in R.C.R.P. No. 129 of 1980 found that the tenant is entitled to the protection provided under the Second Proviso to Section 11(3) of the Act. In the result, the Original Petition filed by the landlord was dismissed. However, the District Court did not disturb the findings of the authorities below regarding the arrears of rent and bona fide need of the landlord. Thereafter the landlord filed C.R.P. No. 683 of 1982 before this court challenging the order passed by the revisional authority in R.C.R.P. No. 129 of 1980. This court by its order dated 3-6-1986 in C.R.P. No. 683 of 1982 set aside the finding of the revisional court on the question of benefits under the Second Proviso to Section 11(3) of the Act and remanded the matter to the revisional court for reconsideration of that question. Thereafter, the revisional court by its order dated 10-10-1986 in R.C.R.P. No. 129 of 1980 found that the running of nursing home by the tenant is not a trade or business attracting the benefit contemplated under the Second Proviso to Section 11(3) of the Act and dismissed the revision petition confirming the orders passed by the Appellate Authority. The tenant filed O.P. No. 9821 of 1986 before this Court challenging that decision. This court by its order dated 19-12-1990 allowed the Original Petition and set aside the finding of the revisional court regarding the protection under the Second Proviso to Section 11(3) of the Act and remanded the matter to the revisional court for reconsideration. The revisional court by its order dated 21-12-1991 set aside the findings of the court below regarding the protection claimed under Second Proviso to Section 11(3) of the Act and remanded the matter to the Rent Control Court for fresh consideration on this point. Thereafter the Rent Control Court again found that the tenant is not entitled to the protection provided under the Second Proviso to Section 11(3) of the Act and ordered eviction. The order of the Rent Control Court was taken up in appeal before the Appellate Authority in R.C.A. No. 164 of 1992 and the Appellate Authority by order dated 5-6-1993 dismissed the appeal holding that the tenant is not entitled to get the protection provided under the Second Proviso to Section 11(3) of the Act. It was also held that the tenant failed to prove that he is mainly depending upon the income derived from the nursing home conducted by him in the petition schedule premises and in that view of the matter, it was not necessary to consider whether any other suitable building was available in the locality or not.
9. Aggrieved by the decision of the Appellate Authority in R.C.A. No. 164 of 1992 dated 5-6-1993 the tenant has come up with the instant Civil Revision Petition.
10. Heard counsel for both sides.
11. Learned counsel appearing for the tenant brought to our notice definition of the word "business" occuring in various dictionaries and Lexicons and based on that asked us to hold that the word "business" takes within its fold the practice of medical profession.
12. In Words and Phrases -- Permanent Edition Vol. 5 at p. 998, the word "businesses defined as meaning almost anything which is an occupation as distinguished from a pleasure -- anything which is an occupation or duty which requires attention as a business. According to Slroud's Judicial Dictionary "business" has a more extensive meaning than the word "trade". According to Black's Law Dictionary, the term "business" has no definite or legal meaning. According to Wharton's Law Lexicon the word "business" in the Registration of Business Names Act, 1916 includes "profession". In Bourier's Law Dictionary "business" means that which occupies the time, attention and labour of men for the purpose of livelihood or profit, but it is not necessary that it should be the sole occupation or employment. It embraces everything about which a person can be employed. It is a word of much indefinite import, and the legislature could not well have used a larger word. According to the Chamber's Twentieth Century Dictionary, "business" means : (a) employment; (b) trade, profession or occupation; (c) a task or errand incumbent or undertaken; (d) matter requiring attention; (e) dealings, commercial activity, a commercial or industrial concern, The word "business" in the Oxford English Dictionary means: (a) A task appointed or undertaken; a person's official duty, part or province; function; occupation, (b) A person's official or professional duties as a whole; stated occupation, profession or trade, (c) A pursuit or occupation demanding time and attention; a serious employment as distinguished from a pastime, (d) A particular occupation; a trade or profession; commercial transactions or engagement. According to Ramanatha Aiyar's Law Lexicon, the word "business" is of a large signification and, in its broadest sense, includes nearly all the affairs in which either an individual or a corporation can be actors. It is further stated that the word has no definite technical meaning, but it is to be read with reference to the object and intent of the Act in which it occurs.
13. The word "business" is not without its definition by courts also. In Smith v. Anderson, 15 Ch. D. 258 Jessel M. R. after citing definitions of "business" from several dictionaries said, "anything which occupies the time and attention and labour of a man for the purpose of profit is business". "Business" has no definite technical meaning, but is to be read with reference to the object and intent of the Act in which it occurs. Ex parte Breull (1881) 16 Ch. D. 481 (James, L.J.).
14. It will thus be seen that the word "business" has been described as a word of flexibility or much signification and very comprehensive and has been variously defined by Lexicographers and Courts. In the broad sense it has been held that it denotes not only all gainful occupations, but all occupations or duties in which men are engaged. It is a word in common use to describe every occupation in which men are engaged and ' embraces every employment or occupation and all matters that engage a person's attention or require his care without the least regard to trade or business. In fact everything that occupies the time, attention and labour of men for the purpose of livelihood or profit is taken to mean "business". In its wider sense it has been said that a mother of several children is engaged in the business of rearing of future citizen. See Ga-Snow v. Johnston 28 S.E. 2nd 270, 277, 197 Ga. 146.
15. In a narrow sense the word "business" is confined to commercial activity.
16. On a consideration of the various definitions placed on the word "business" by Laxicographers and Courts we are afraid that the same will not be of any assistance to the tenant-revision petitioner to advance his case before this court in the instant proceedings. We cannot lose sight of the fact that we are contruing the word "business" as occuring in a legislative enactment and hence its meaning must be held to depend upon the context, the facts of the particular case, the intention of parties or upon the purposes of legislation. The word "business" has no technical meaning but has to be read with reference to object and intent of the Act in which it occurs. The argument of learned counsel for the tenant would have been entitled to great weight had the word "business" occured in the Second Proviso to Section 11(3) of the Act in isolation without being coupled with the word "trade". The difficulty arises because of the fact that the expression used in the Second Proviso to Section 11(3) of the Act is "trade or business".
17. The Constitution Bench of the Supreme Court In Krishnakumar v. J. & K. State, (AIR 1967 SC 1368) while interpreting the phrase "trade or business" occuring in Article 19 of the Constitution, after posing the question what is "trade or business" held that "though the word" 'business' is ordinarily more comprehensive than the word 'trade', one is used as synonymous with the other". The result therefore is that once the word "business" is used along with the word "trade" the former must take its colour from the latter. So construed, the word "business" in Second Proviso to Section 11(3) of the Act must be given a restrictive interpretation confining it to purely commercial activity like buying and selling and excluding from its purview the practice of "profession" which is purely personal, depending on the specialised skill or ability of the individual in a particular field of learning which has been acquiring through a systematic training and collegiate discipline, that has a base in technical, specialised knowledge and that has a service rather than profit orientation enshrined in its code of ethics in contrast to commerical activity in which earning of profit is the dominant object. Viewed in the above perspective we have no hesitation in holding that the word "business" in the Second proviso to Section 11(3) of the Act has to be given a narrow and restrictive interpretation consistent with the meaning of the word "trade" --as buying and selling of merchandise --whose company it keeps taking outside its purview the practice or profession where learning and skill and collegiate discipline and absence of profit motive is a sine qua non as already noticed.
18. Learned Counsel appearing for the tenant pressed into service the decision of the Supreme Court in S. Mohan Lal v. R. Kon-diah, AIR 1979 SC 1132 in support of his contention that the running of a nursing home is "business". The facts of the case are as follows: An Advocate filed an application before the Rent Controller seeking eviction of the tenant from the premises in question on the ground that he required the premises for the purpose of carrying on his profession as an Advocate. Application was resisted by the tenant. The final court of fact found that the landlord bona fide required the premises for the purpose of carrying on his profession as an Advocate and ordered eviction and the Appellate Authority confirmed that order. Before the High Court in revision it was contended by the tenant that the practice of the profession of an Advocate was not "business" within the meaning of Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, I960 (for short the 'Andhra Pradesh Act') and therefore the landlord was not entitled to evict the tenant on the ground that he required the premises for the purpose of carrying on his profession as an Advocate. It was contended that Section 10(3)(a)(iii) of the Andhra Pradesh Act used the expression "business only" and not the expression "profession". The contention was negatived by the High Court and in appeal by the tenant the Supreme Court on a consideration of the provisions of Section 10(3)(a)(iii) of the Andhra Pradesh Act held that the expression "business" occuring in Section 10(3)(a)(iii) of the Andhra Pradesh Act was used in a wide sense so as to include the practice of profession of an Advocate. Relying on the aforesaid decision of the Supreme Court, learned counsel appearing for the tenant, submitted that the word "business" occurring in the Act has to be similarly construed giving it a wide meaning so as to mean the conduct of a hospital as a "business". We cannot accede to the contention of the learned counsel for the tenant-revision petitioner. The decision of the Supreme Court in Mohan Lal v. R. Kondiah (supra) holding that the word "business" occuring in Section 10(3)(a)(iii) of the Andhra Pradesh Act is used in a wide sense so as to include the practice of profession of an Advocate cannot be treated as a decision of universal application. The said decision was rendered, as already noticed, in the context of Section 10(3)(a)(iii) of the Andhra Pradesh Act in which the word "business" alone is used in contra distinction to the phrase "trade or business" in the Act herein and therefore the said decision of the Supreme Court has no application to the facts of the present case. The Supreme Court in Mohan Lal's case itself has held that it is not a sound principle of construction to interpret expressions used in one Act with reference to their use is another Act; more so if the two Acts in which the same word is used are not cognate Acts. Neither the meaning nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light in the manner in which the term should be understood generally. On the other hand it is a sound, and indeed, a well-known principle of construction that meaning of words and expression used in an Act must take their colour from the context in which they appear, so much so the wider meaning given by the Supreme Court to the word "business" occurring in Andhra Pradesh Act cannot be adopted for the purpose of interpreting that word occuring along with the word "terade" in the Act. There is yet another difficulty, namely, whereas the Andhra Pradesh Act uses the expression "business" only in Section 10(3)(a)(iii) of the said Act, the words used in the Act is "trade or business" and not "business" alone. Viewed in the above light also it is not possible to accede to the petitioner's contention to give a wider meaning to the word "business" occuring in the Act so as to include within its ambit the practice of the medical profession. In the above view of the matter, the decision of the Supreme Court in Mohanlal's case is of no assistance to the tenant-revision petitioner.
19. It was then argued by learned counsel for the tenant that a place used for "Thanneerpanthal" (distribution of drinking water) activity was held to be 'Business" by the Madras High Court by interpreting the word "business" in Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act in P. Vairamani Ammal v. Kahnappa, 1971 RCJ 303. The learned counsel submitted that the words "trade or business" occurring in Second Proviso to Section 11(3) should also be given a similar interpretation. For the reasons already stated the principle laid down in Vairamani Ammal's case can have no application to the facts and circumstances of the present case since in that case the court was construing the word "business" and not "trade or business". Learned counsel placed a decision reported in Dr. Bashir Uddin v. District Judge Bulandshahr, 1978 (1) RCJ 199 wherein it was held that the word "business" used in 3rd Proviso to Clause (ii) of Section 21 of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 includes the practice of the profession of a Dental Surgeon. That again is a decision which has no bearing in the present case in as much as the Court there was interpreting the words "business purposes" and not "trade or business" as in the Act herein. Learned counsel placed strong reliance on the decision of the Supreme Court reported in Bangalore Water Supply & Sewerage Board v. Rajappa, AIR 1978 SC 548 : (1978 Lab IC 467) in support of his contention. Here again, it has to be observed that he principles of law laid down by the Supreme Court in the aforesaid case, cannot have any application to the facts of the present case. In the Sewerage case the Supreme Court has widened the concept of "industry" as defined in Section 2(j) of the Industrial Disputes Act as accordingly to it the definition is vague and the situation calls for same 'judicial heroies' to cope with the situation raised. Under the said decision any organised activity involving co-operation between employer and employee resulting in rendering of services to the community or production of material goods shall be deemed to be an 'industry' irrespective of the fact that the activity has any profit motive, barring sovereign functions of the State strictly construed. Learned counsel took us through the judgment in detail. On a consideration of the discussion of the various aspects in the judgment, we are of the view that the said decision is not applicable to the facts of the present case. Quite a few other decisions were also brought to our notice by the learned counsel but we are not referring to them as, according to us, they are totally inapplicable to the facts of the present case. This court cannot as a general rule follow the old beaten track of precedents in total disregard of the reasons upon which it rests, the wording of the statutory provision under consideration and the backdrop and setting of the case in general.
20. Learned counsel appearing for the landlord on the other hand placed strong reliance on the Division Bench decision of this Court reported in Sethurama Menon v. Meenakshi Amma, 1966 KLT 665 : AIR 1967 Ker 88. The question for determination in that case was whether an Advocate can be considered to carry on "trade or business" within the meaning of that expression as used in the Second Proviso to Section 11(3) of the Act. Chief Justice M.S. Menon in his inimitable style and diction has distinguished the expression "profession" from "trade or business". His Lordship held that (at page 89 of AIR):--
"the expression 'trade or business' connotes a commercial activity. The expression 'profession' does not and is virtually at the other end of the scale. What is important in deciding whether a person is carrying on a profession or not, is whether he is a member of an organised body with a recognised standard of ability enforced before he can enter it and a recognised standard of conduct enforced while he is practising it. This is certainly not the test in deciding whether a person is carrying on a trade or business. "Profession" is a vocation in which a professed knowledge of some department of science or learning is used by its practical application to the affairs of others, either in advising, guiding, or teaching them, or in serving their interests or welfare in the practice of an art founded on. Even assuming that the word "business" is a word of ambiguous import and that it takes its content from its context, it cannot be said that the word "business" in the expression "trade or business" occurine in the proviso will include the profession an Advocate."
21. According to us, the principles laid down in the above decision will apply squarely to the facts of the present case. The statutory provision under consideration before this court in Sethurama Menon (supra) was also identical, namely, the Second Proviso to Section 11(3) of the Act. The decision still holds the field in as much as it has not been varied or overruled. Even in Mohan Lal's case though the Supreme Court had occasion to refer to this case, there is nothing to indicate in the said decision that the principles laid down in Sethurama Menon's case has been dissented by the Supreme Court. Their Lordships of the Supreme Court did not overrule or distinguish Sethurama Menon. Therefore, we follow the principles of law laid down by the Division Bench of this Court in Setburama Menon v. Meenakshi Amma, 1966 KLT 665: AIR 1967 Ker 88, as according to us, as already noticed the principles therein squarely apply to the facts of the instant case as the statutory provision under consideration is the same.
22. Again, in Krishnankutty Menon v. A.P. Malathi, 1985 KLT 6 a learned single Judge of this Court while interpreting the Second Proviso to Section 11(3) of the Act held that a member of the legal profession is not carrying on a "trade or business" to eke out his livelihood from the "business". It was held as follows:
"It is impossible to accede to the contention that a member of the legal profession is carrying on a 'trade or a business', to eke out his livelihood from the 'business, of the practice of the profession. To equate a member of the learned profession as a businessman making out his livelihood from his profession would be to completely ignore the history and glory of noble profession. A concept that a member of the profession is depending for his 'livelihood' on the profession is supremely inapposite to the context of a profession which holds a high and hoary tradition."
23. The present discussion will be incomplete without reference to the decision of the Supreme Court in V. Sasidharan v. Peter and Karunakaran, (1984) 2 SCC 30 : (AIR 1984 SC 1700) and the decision of this Court in C.R.P. 1686 of 1978.
24. In Sasidharan v. Peter and Karunakaran, (1984) 2 SCC 30 : (AIR 1984 SC 1700). Chief Justice Chandrachud refused to believe that legal profession in India was increasingly acquiring attributes of "trade or business". According to him, whatever be the popular conception or misconception regarding the role of today's lawyers and the alleged narrowing of the gap between a profession on the one hand and a trade or business on the Other, it is trite, that traditionally, lawyers do not carry on a trade or business nor do they render "service" to customers. The above observation of the learned Chief Justice applies with equal force to members of the medical fraternity as well.
25. In C.R.P. 1686 of 1978 this Court considered the question whether a doctor, who carries on a dispensary and clinic in a rented building, is entitled to claim the protection envisaged under the Second Proviso to Section 11(3) of the Act. The tenant there raised a contention that since he is depending upon the income derived from that business for his livelihood is not liable to be evicted. This Court after a detailed survey of decisions Indian and English held as follows :
"I do not find any reason to differ from the observation made by the eminent Judges who decided the case in Sethuamma Menon v. Meenakshi Amma, 1966 KLT 665 : (AIR 1967 Ker 88). With respect I agree with the view that was taken there that the expression 'trade or business' should be interpreted as carrying a commercial activity and not the practice of professon'."
The principle laid down in CRP 1686 of 1978 has not been distinguished or up set by any later decision of this Court.
26. There is yet another reason why the tenant should fail in this Civil Revision Petition. Even if it is accepted for argument's sake that the tenant is carrying on "business" in the petition schedule building can it be said that the benefit of Second Proviso extends to every such "business" irrespective of its nature and irrespective of the fact that the tenant does not belong to the weaker section of the society. The answer is and must be in the negative. In introducing proviso 2 to Section 11(3) in the earlier Rent Control Act of 1959, the Law Minister explained its objects as follows:
"A proviso is also added to Sub-section (3) of this Section to make it clear that in the case of buildings which are used for purposes of trade or business the tenant shall not be evicted from such buildings if the tenant, mainly depends on the income derived from the trade or business for his livelihood and if no other suitable building is available in the locality. This House would kindly remember that with regard to sites and buildings on such sites used for petty business or commercial or industrial purposes, a provision has been introduced in the Agrarian Relations Act also giving fixity of tenure to the holders of such titles."
In 1965 Act also this proviso was included without any alteration. This is a unique provision peculiar only to the Kerala Rent Control Act, which altegether takes away the landlord's right to get back possession of his own building for his own occupation, in order to protect what was considered a weaker section of the society. Therefore, the provision calls for such an interpretation so as to confine the benefit only to the weaker section of the society. In case of any doubt as to whether the tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in the building from which he is sought to be evicted, this aspect viz. whether he belongs to the weaker section of the society will assume importance. If he does not belong to the weaker section of the society, he will not be entitled to the benefit under the 2nd proviso to Section 11(3) of the Act. By no stretch of imagination it can be held that the tenant in this case belongs to the weaker section of the society. (Vide Division Bench decision of this Court in CRP. 2081 of 1993 dated 22-12-1993).
27. Viewed in the above background also, we are of the view that the tenant is not entitled to the protection envisaged under the Second Proviso to Section 11(3) of the Act.
28. In the light of the above discussion we are of the view that the tenant who is running a nursing home in the petition schedule building cannot be said to carry on "business" within the meaning of that expression "trade or business" occurring in the Second Proviso to Section 11(3) of the Act.
29. We do not find any illegality, irregularity or impropriety in the finding of the Court below and the same has only to be confirmed. We, therefore, confirm the order of eviction passed by the authorities below against the tenant.
30. However, under the circumstances of this case we grant three months time to the revision petitioner (tenant) to vacate and hand over vacant possession of the petition schedule buildings to the respondent (landlord) on the following conditions :
The tenant shall file an affidavit in the execution court within one month from today unconditionally undertaking to vacate the premises within three months from the date of this judgment. He should pay arrears of rent, if any, along with the affidavit and continue to pay the monthly rent retularly during the period he is permitted to occupy the premises. He should not sublet the building or induct any other person in the building. The undertaking should contain a statement to this effect also.
In case any of these provisions is not complied with, the landlord will be free to evict the tenant immediately thereafter and get vacant possession in accordance with the order of eviction in this proceedings.
C.R.P. dismissed with the above directions. There will be no order as to costs.